Dr. Yashwantrao Bhaskarrao … vs Raghunath Kisan Saindane on 8 October, 2021


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Supreme Court of India

Dr. Yashwantrao Bhaskarrao … vs Raghunath Kisan Saindane on 8 October, 2021

Author: Hon’Ble Ms. Banerjee

Bench: Hon’Ble Ms. Banerjee, J.K. Maheshwari

                                                                            REPORTABLE

                                        IN THE SUPREME COURT OF INDIA

                                         CIVIL APPELLATE JURISDICTION

                                         CIVIL APPEAL NO. 6315 OF 2021
                          (ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 27874 OF 2018)

                         DR. YASHWANTRAO BHASKARRAO DESHMUKH ...APPELLANT

                              VERSUS

                         RAGHUNATH KISAN SAINDANE                         …RESPONDENT

                                               JUDGMENT

J.K. MAHESHWARI, J.

Leave granted.

2. This appeal arises out of the judgment passed on

7.8.2018 by the High Court of judicature of Bombay, Bench at

Aurangabad on Civil Application No. 12143 of 2017 in Second

Appeal (ST) No. 31286 of 2017 dismissing the application

seeking condonation of delay and the appeal as barred by

limitation.

3. The facts leading to file this appeal are that a suit for
Signature Not Verified

Digitally signed by
SUNIL KUMAR
Date: 2021.10.08
18:06:07 IST
specific performance of the contract was filed by the
Reason:

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respondent against the appellant based on an agreement to

sell dated 18.2.1998 with respect to an agricultural land

bearing Gat No. 21/1, admeasuring 1.54 hectares, situated at

Maouje Hingone Sim Tehsil Amalner. The said suit was partly

decreed ex­parte by judgment dated 9.12.2002 in Special Civil

Suit No. 2 of 2001 by Civil Judge (Sr. Division), Amalner

directing recovery of a sum of Rs. 61,000/­ along with interest

@ 6% p.a. from the appellant (defendant therein), while relief

for specific performance of contract was denied.

4. Respondent preferred first appeal before the High Court.

The appellant was duly served and appeared in the said

matter through the counsel. However, due to enhancement of

pecuniary jurisdiction of the District Court, the said appeal

stood transferred from the High Court to the District Court.

Thereafter, a fresh notice was issued to the appellant, which

was served through paper publication. The appellant did not

appear, and taken pretext of non­service of the notice due to

change of his address. The Ad­hoc District Judge­I, Amalner

proceeding ex­parte, allowed the Regular Civil Appeal No. 31 of

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2012 vide judgment dated 8.09.2015 and granted decree of

specific performance in favour of respondent (plaintiff therein).

5. Aggrieved by the judgment of the Ad­hoc District Judge­I,

appellant filed second appeal before the High Court of

judicature of Bombay, Bench at Aurangabad on 18.9.2017,

inter alia, contending that the judgment passed by the Ist

Appellate Court came to his knowledge only on 14.9.2017.

There was a delay of 650 days in filing the appeal. However,

explaining the delay due to lack of knowledge of the decision

in the appeal, prayer for condonation was made.

6. By the impugned judgment dated 07.08.2018, passed by

the High Court in Second Appeal (ST) No. 31286 of 2017, the

application seeking condonation was rejected, observing that

the plea of non service of notice due to change of address was

not acceptable. It was also observed that the appellant had

himself been negligent and had not contacted his counsel

engaged in the lower appellate court. The High Court,

however, observed that the respondent, who had been

litigating since last 17 years, ought not be deprived of the

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valuable right as accrued to him. With these observations, the

application seeking condonation was rejected, dismissing the

second appeal, as time barred.

7. Learned counsel for the appellant has strenuously urged

that the suit was filed for specific performance of contract. As

per the defence taken, it is visible from the agreement itself

that it was not an agreement to sell but a money transaction,

to which a sum of Rs. 90,000/­ has been refunded and only

sum of Rs. 51,000/­ was remaining. In addition, Rs. 10,000/­

paid later and endorsed therein. The trial court decreed the

suit partly, for refund of earnest amount. The decree of

specific performance is a discretionary relief, as specified

under Section 16 of the Specific Relief Act. However, without

giving an opportunity of hearing to contest the claim, the

lower appellate court allowed the appeal of the respondent and

passed an ex­parte judgment and decree of specific

performance. Counsel argued that the dismissal of the

second appeal on the ground of limitation is wholly

unreasonable.

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8. In support of the contentions, reliance has been placed

on a judgment of this Court in the case of Perumon

Bhagvathyu Devaswom Perinadu Village vs. Bhargavi

Amma (dead) by LRS and Others (2008)8SCC 321 to contend

that when appeal is pending in the appellate court where

periodical dates are not being given, the parties cannot be

faulted with because the counsel informs the parties that they

will get in touch as and when the case is listed for hearing.

Considering the facts of the case in which the notice of the

appeal sent by publication is not allegedly served and the

documents of change of address have been filed by the

appellant as well as the respondent, which are on record, in

such a situation, lenient view ought be taken.

9. Reliance is further placed on the judgment of this Court

in N. Mohan vs. R. Madhu 2019(16)SCALE 602. In the said

case, considering the facts and circumstances of the case and

in the interest of justice, an opportunity was granted subject

to deposit of the amount.

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10. Reliance is further placed on the decision of this Court in

Rohin Thapa vs. Rohit Dora (2019) 7 SCC 359, wherein this

Court subject to direction of deposit of the amount of the

agreement and further deposit of the amount of the stamp

and registration fee, directed to condone the delay and also

set­aside the sale deed, executed by the Court. Therefore, an

opportunity in a suit of specific performance to the appellant

may be granted condoning the delay subject to imposition of

the conditions, as deemed fit.

11. Per contra, learned counsel representing the respondent

contends that a suit for specific performance of contract was

filed long back and respondent is contesting the matter for the

last 20 years. In the said suit in trial court, the appellant

remained ex­parte. However, the suit was partly decreed. On

filing a first appeal before the High Court, notice was served

and the appellant was represented through an advocate.

Later, due to enhancement of pecuniary jurisdiction, the said

appeal stood transferred to the court of Ad­hoc District

Judge­I, Amalner, where from notice of the appeal was served

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through publication. The appellant did not choose to appear

before the Ist Appellate Court, however the suit seeking

specific performance was decreed. The appellant remained

ex­parte and on filing the execution, the sale deed has also

been executed. The appeal filed before the High Court by the

appellant was barred by limitation of 650 days, which has not

been explained showing bona fides. In such a case,

interference by this Court is not warranted.

12. Having heard learned counsel for the parties and on

perusal of the facts of the case, suit seeking specific

performance was based on an agreement to sell dated

18.2.1998. As per the said agreement to sell, appellant had

agreed to sell 5 bighas of land for a consideration at the rate

of Rs. 51000/­ per bigha. As per the entries on the

agreement to sell, certain amount was paid. Later on, certain

refund is also recorded and acknowledged thereon. The Trial

Court, considering the same, refused to grant a decree of

specific performance but directed for refund of Rs. 61,000/­

with interest. The said decree was reversed by the lower

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Appellate Court, directing specific performance. In both the

courts, the appellant remained ex­parte.

13. The appellant filed an appeal before the High Court,

which has been dismissed as barred by limitation. The High

Court, while dismissing the application seeking condonation of

delay in filing second appeal observed that sufficient cause for

delay has not been established. The litigant, who is contesting

the matter, cannot be negligent and it would be unfair to

deprive the respondent, litigating for the last 17 years, of the

valuable right that has accrued to him.

14. In this case, the appellant has also produced the

documents including voters list/aadhar card showing his

change of address from Amalner to Nashik. On the other

hand, the respondent has produced the voters’ list of

Amalner itself contending that the name of appellant is still

existing. However, in such a situation without any enquiry

and without arriving at a finding disbelieving the explanation

of the appellant, the High Court was not justified in rejecting

the application for condonation of delay.

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15. As per the judgment of Perumon Bhagvathy Devaswom

(supra), the Court, while dealing with the issue of condonation

of delay in respect of matters pending at the appellate stage,

has clearly observed that advocates usually inform the

litigants who are to be in contact. Sometimes, they assure

their clients that will give information to them as and when

matter would be ripe for hearing. Considering the aforesaid

aspect and taking a lenient view, we are of the considered

opinion that the High Court erred in dismissing the second

appeal solely on the ground of limitation. Therefore, the

impugned judgment and order of the High Court is set­aside.

16. A second appeal lies to the High Court if the High Court

is satisfied that a substantial question of law is involved. We

request the High Court to take up the second appeal for

admission as expeditiously as possible, preferably within one

month, and if the second appeal is admitted, to decide and

finally dispose of the same within a period of six months from

the date of communication of this judgment and order.

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17. It is made clear here that any of the observations made

hereinabove would not be treated as an expression on the

merits of second appeal and would not cause any impediment

to the parties.

18. Appeal is, thus, disposed of in the aforesaid terms. No

order as to costs.

……………………………J.

[ INDIRA BANERJEE ]

……………………………J.

[ J.K. MAHESHWARI ]
NEW DELHI;

OCTOBER 8, 2021.

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